Civil Procedure - Knowledge Set

Question 1

In state court and frequently in federal court (absent consent or waiver), personal jurisdiction is limited by:

A State statutes, the Due Process Clause of the U.S. Constitution, and state venue rules

B State statutes only

C The Due Process Clause of the U.S. Constitution only

D State statutes and the Due Process Clause of the U.S. Constitution

Answer 1

D

Looking at state statutes (particularly the state’s long arm statutes, which authorize jurisdiction over nonresidents of the state in certain circumstances) is the first step to determine if personal jurisdiction is authorized. States have the power to decide over whom their courts may exercise personal jurisdiction. Additionally, even if the state statute authorizes personal jurisdiction over a particular defendant, the exercise of personal jurisdiction also must not offend the Due Process Clause of the U.S. Constitution. To be constitutional, the defendant must have sufficient minimum contacts with the state such that the exercise of personal jurisdiction would be fair and reasonable. Of course, the defendant may consent to personal jurisdiction or waive the issue by failing to timely raise it. Under the Federal Rules, a federal court generally must analyze the personal jurisdiction issue as if it were a state court sitting in the jurisdiction. There are exceptions, however. An impleaded party or a party needed for just adjudication is subject to personal jurisdiction if served within a judicial district within the United States and not more than 100 miles from where the summons was issued. Furthermore, personal jurisdiction may be authorized by federal statute. State venue rules do not affect the jurisdiction of the courts. Venue relates to the proper geographic district in which to bring the action.

Question 2

For a defendant to have such minimum contacts with the forum that the exercise of personal jurisdiction over him would be fair and reasonable, the court must find:

A Only that he purposefully availed himself of that forum

B That he purposefully availed himself of that forum and it was foreseeable that his activities would make him amenable to suit in the forum

C That he purposefully availed himself of that forum or it was foreseeable that his activities would make him amenable to suit in the forum

D Only that it was foreseeable that his activities would make him amenable to suit in the forum

Answer 2

B

For a defendant to have such minimum contacts with the forum that the exercise of personal jurisdiction over him would be fair and reasonable, the court must find that he purposefully availed himself of that forum AND it was foreseeable that his activities would make him amenable to suit in the forum. Defendant’s contact with the forum must result from his purposeful availment with that forum. The contacts cannot be accidental. In addition to purposeful availment, the contact requirement of International Shoe requires that it be foreseeable that the defendant’s activities make him amenable to suit in the forum. The defendant must know or reasonably anticipate that his activities in the forum render it foreseeable that he may be “haled into court” there.a

Question 3

Venue is _______ in a civil action in a _______.

A Improper; judicial district in which any defendant resides, if all defendants are residents of the state in which the district is located

B Improper; judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated

C Proper; judicial district in which any defendant resides, if all defendants are residents of the state in which the district is located

D Proper; judicial district in which any defendant resides, regardless of whether all defendants are residents of the state in which the district is located

Answer 3

C

Venue in civil actions is proper in a judicial district in which any defendant resides, if all defendants are residents of the state in which the district is located. Venue is also proper in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated. Also if there is no district anywhere in the United States which satisfies the first two requirements, venue is proper in a judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action. Venue is not necessarily proper in a judicial district in which any defendant resides, if the defendants are not all residents of the same state in which the district is located.

Question 4

Assume that venue was proper in the district where a suit was originally brought. Is transfer to another district permitted, and if so where?

A Transfer is permitted to another district where the action might have been brought, or to which all parties have consented

B Transfer is permitted, but only to a district to which all parties have consented

C Transfer is not permitted where the original venue is proper

D Transfer is permitted, but only to another district where the action might have been brought

Answer 4

A

Even where the original venue is proper, transfer is permitted to either (i) another district where the action might have been brought or (ii) a district to which all parties have consented. The policy behind this rule is that while venue may be correct, the parties or the witnesses might be greatly inconvenienced by the trial in the original forum.

Question 5

In order to satisfy federal question jurisdiction, the federal question must appear in:

A The plaintiff’s complaint

B Either the plaintiff’s complaint or the defendant’s answer

C Either the plaintiff’s complaint or the defendant’s answer or counterclaim

D Either the plaintiff’s complaint or the defendant’s answer, counterclaim, or cross-claim

Answer 5

A

In order to satisfy federal question jurisdiction, the federal question must appear in the plaintiff’s complaint. The federal question must appear as part of the plaintiff’s cause of action as set out in a well-pleaded complaint. Federal question jurisdiction is not satisfied if the federal question appears in the defendant’s answer, counterclaim, or cross-claim.

Question 6

When a plaintiff has both federal and state-based claims against a defendant and diversity jurisdiction does not exist, the federal court has:

A Discretion to exercise supplemental (pendent) jurisdiction over the state law claim, regardless of whether the two claims derive from a common nucleus of operative fact

B No discretion to exercise supplemental (pendent) jurisdiction over the state law claim; it must transfer all claims to state court

C Discretion to exercise supplemental (pendent) jurisdiction over the state law claim if the two claims derive from a common nucleus of operative fact and are such that a plaintiff would ordinarily be expected to try them all in one judicial proceeding

D No discretion to exercise supplemental (pendent) jurisdiction over the state law claim; it must exercise such jurisdiction

Answer 6

C

In some cases, the plaintiff will have both federal and state claims against the defendant. Although there may be no diversity, the federal court has discretion to exercise supplemental (pendent) jurisdiction over the claim based on state law if the two claims are so related that they are part of the same case or controversy, which essentially means that they derive from a common nucleus of operative fact and are such that a plaintiff would ordinarily be expected to try them all in one judicial proceeding. A federal court does not have discretion to exercise jurisdiction if the claims are unrelated. Hence, it is not correct that the court has discretion regardless of whether the claims are related. The court’s exercise of supplemental jurisdiction in such a scenario is discretionary. Thus, both answer choices asserting that the court has no discretion to exercise supplemental (pendent) jurisdiction over the state law claim are incorrect. It need not exercise discretion, and it need not transfer the claims to state court.

Question 7

Which party or parties can exercise the right of removal?

A Only the plaintiff

B The plaintiff or the defendant

C The plaintiff, the defendant, or the court

D Only the defendant

Answer 7

D

Only the defendant can exercise the right of removal. Under 28 U.S.C. section 1441(a), a defendant may remove to federal court an action that could have originally been brought by the plaintiff in federal court. This means that if a federal court would have had federal subject matter jurisdiction (e.g., federal question or diversity jurisdiction) originally, the case may be removed to federal court. A plaintiff cannot exercise the right of removal, even on the ground that a counterclaim against him could have been brought independently in a federal court. The court cannot remove a case on its own motion.

Question 8

Federal jurisdiction based on diversity of citizenship is defined in terms of “complete diversity,” which means:

A Every party must be a citizen of a different state from every other party

B One plaintiff must be a citizen of a different state from one defendant

C No plaintiff may be a citizen of the same state as any defendant

D All plaintiffs must reside outside of the chosen venue

Answer 8

C

For purposes of diversity of citizenship jurisdiction, complete diversity means that no plaintiff may be a citizen of the same state as any defendant . Complete diversity does not require complete diversity among all parties. Thus, stating that every party must be a citizen of a different state from every other party is incorrect. The statement that one plaintiff must be a citizen of a different state from one defendant describes minimal diversity and is incorrect for purposes of diversity of citizenship jurisdiction. (Minimal diversity is all that is constitutionally required, and Congress has granted subject matter jurisdiction based on minimal diversity in some classes of cases such as those falling under the federal interpleader statute. However, Congress has not granted a broad subject matter jurisdiction based on minimal diversity.)

Question 9

For purposes of diversity jurisdiction, a corporation is considered to be a citizen of:

A The first state in which it was incorporated and the one state in which it has its principal place of business

B Every state in which it is incorporated and the one state in which it has its principal place of business

C Every state in which it is incorporated and every state in which it does substantial business

D The first state in which it was incorporated and every state in which it does substantial business

Answer 9

B

For purposes of diversity jurisdiction, a corporation is deemed to be a citizen of every state in which it is incorporated and the one state in which it has its principal place of business. Thus, it is possible for a corporation to have two or more state citizenships for diversity purposes. The rule for a corporation is that, in addition to its states of incorporation, a corporation is a citizen of the one state in which it has its principal place of business. It is not a citizen of every state in which it does substantial business. Likewise, in addition to the principal place of business, a corporation is deemed to be the citizen of every state in which it is incorporated, not just the first state in which it was incorporated. Thus, the choices incorporating those standards are incorrect statements of a corporation’s citizenship for diversity purposes.

Question 10

To satisfy the amount in controversy requirement for diversity jurisdiction, a plaintiff may:

A Join her lawsuit with another plaintiff bringing an unrelated claim against the same defendant

B Aggregate only related claims against a single defendant

C Aggregate unrelated claims against several defendants

D Aggregate unrelated claims against a single defendant

Answer 10

D

In order to satisfy the amount in controversy requirement, a good faith claim that the amount exceeds $75,000, exclusive of interest and costs of the lawsuit, is required.

To satisfy the amount in controversy requirement for diversity jurisdiction, a plaintiff may aggregate unrelated claims against a single defendant. In other words, the plaintiff may aggregate all of her claims regardless of whether the claims are legally or factually related to each other. Hence, it is not correct that the plaintiff may aggregate only related claims against a single defendant. A plaintiff who has an action against several defendants may not aggregate unrelated claims (i.e., claims based on separate liabilities). Several plaintiffs cannot join their lawsuits to bring unrelated claims against the same defendant. They can only aggregate their claims when they are seeking to enforce a single title or right in which they have a common or undivided interest (e.g., joint owners of real estate).

Question 11

Select the statement that best describes the Erie doctrine:

A A federal court exercising federal question jurisdiction applies federal substantive law and state procedural law

B A federal court exercising diversity jurisdiction applies state substantive law and federal procedural law

C A federal court exercising diversity jurisdiction applies federal substantive law and state procedural law

D A federal court exercising federal question jurisdiction applies state substantive law and federal procedural law

Answer 11

B

Under the Erie doctrine, a federal court exercising diversity jurisdiction applies state substantive law and federal procedural law. Federal procedural laws are found in federal statutes and the Federal Rules of Civil Procedure. If there is no federal statute or rule on point, the court must determine whether an issue is substantive or procedural. The Erie doctrine does not apply to courts exercising federal question jurisdiction; in those cases, a federal court will apply federal substantive and procedural law.

Question 12

In a federal question case, the action is always deemed commenced for statute of limitations purposes when:

A The complaint is filed with the court

B The complaint is filed, if service of process occurs within a specified timeframe

C Process is served on the opposing party

D Either the complaint is filed or process is served on the opposing party, depending on the law of the state in which the federal court sits

Answer 12

A

In a federal question case, the action is deemed commenced for statute of limitations purposes when the complaint is filed with the court. In diversity cases (not federal question cases), the Supreme Court has held that the state rule for determining when the action is commenced applies. Thus, depending on the state rule, an action may be commenced for statute of limitations purposes when process is served on the opposing party. However, the federal rule (as described above) applies in federal question cases. The choice providing commencement when either the complaint is filed or process is served on the opposing party, depending on the law of state in which the federal court sits, is incorrect; this essentially states the rule when subject matter jurisdiction is based on diversity of citizenship. The choice providing for commencement when the complaint is filed, if service of process occurs within a specified timeframe is incorrect. Some states have such dual provisions, in that the date that the complaint is filed is used when service occurs within a certain timeframe after filing, but if that timeframe for service is exceeded, the date of service is used. But that is not the rule in federal question cases.

Question 13

In federal court, if a person travels to another jurisdiction solely to be a witness in a court action, he:

A Is immune from process as long as he is only a witness and not a party

B Is immune from process only if he were fraudulently served with a subpoena to be a witness

C Is immune from service of process
D May be served with process in person

Answer 13

C

If a witness travels to another jurisdiction solely to be a witness in a court action, the witness is immune from service of process. Therefore, the witness may not be served with process in person while in the other jurisdiction for court purposes. The immunity rule applies to witnesses, parties, and attorneys alike. Thus, it is not correct that he is immune from process as long as he is only a witness and not a party. Immunity from being a witness is a separate concept from being fraudulently induced to come into a jurisdiction for purposes of serving process and obtaining personal jurisdiction. Participation in a judicial proceeding is grounds for immunity and does not require fraud on the part of the serving party. Thus, the choice providing immunity only if he were fraudulently served with a subpoena to be a witness is incorrect.

Question 14

Which of the following defenses may be raised at any time prior to trial or at trial?

A Improper venue

B Failure to state a claim upon which relief can be granted

C Insufficient service of process
D Lack of personal jurisdiction

Answer 14

B

Failure to state a claim upon which relief can be granted may be raised at any time prior to trial or at trial. Failure to join a party needed for just adjudication would need to be raised at this time too. Lack of personal jurisdiction, improper venue, and insufficient service of process all must be raised at the time the defendant files a motion or his answer (whichever comes first).

Question 15

Generally, amendments to pleadings relate back to the date the original pleading was filed if:

A The amendment does not add a new cause of action

B The statute of limitations has not expired

C The amendment concerns the same conduct, transaction, or occurrence that was set forth in the original pleading

D The amendment does not add parties to the action

Answer 15

C

Generally, amendments to pleadings relate back to the date the original pleading was filed if the law that provides the statute of limitations applicable to the action permits relation back or the amendment concerns the same conduct, transaction, or occurrence that was set forth in the original pleading. Hence, the filing date of the amendment is deemed to be the filing date of the original pleading. It is not true that just because the amendment does not add parties to the action that it automatically relates back. An amendment changing the party or the naming of the party against whom a claim is asserted relates back if the amendment concerns the same conduct, transaction, or occurrence as the original pleading and if, within 120 days after filing the complaint and such additional time as the court may order upon showing of good cause (essentially the time period for service of process), the party to be brought in by amendment: (i) Has received such notice of the action that she will not be prejudiced in maintaining her defense on the merits; and (ii) Knew or should have known that, but for a mistake concerning the proper party’s identity, the action would have been brought against her. The Supreme Court has emphasized that it is the knowledge of the party to be brought in by amendment (not of the plaintiff) that is relevant. An amendment adding a new cause of action is permitted if the new cause of action is derived from the same facts that was set forth in the original pleading, making “the amendment does not set forth a new cause of action” an incorrect answer choice. It is also not true that a pleading may be amended only if the statute of limitations has not expired.

Question 16

If it is determined that an absentee’s interest in the subject matter of the litigation would be affected by a judicial determination of a case, the court has personal jurisdiction over the absentee, and joining him would not destroy jurisdiction or venue, he:

A Must be joined as a party to the case

B May be joined as a party to the case in the court’s discretion

C Need not be joined as a party to the case

D Need not be joined as a party to the case if the court determines that it can shape relief so as to protect that interest

Answer 16

A

An absentee must be joined as a party to the case if it is determined that he has an interest in the subject matter of the litigation that could be affected by a judicial determination in the case, the court has personal jurisdiction over the absentee, and joining him to the action would not destroy diversity jurisdiction or venue. If the absentee cannot be joined to the case for some reason—such as if the court lacks personal jurisdiction over him or his presence would destroy diversity or venue—the court may nonetheless proceed and the absentee need not be joined as a party to the case if the court determines that it can shape relief so as to protect that interest. However, the ability to shape relief will not excuse the failure to join such an absentee if the court has the ability to do so. If the party has an interest in the current litigation, and the court could join him (i.e., it has personal jurisdiction over him) without destroying subject matter jurisdiction or venue, the court must do so. It is not a discretionary matter. Thus, the answer “may be joined as a party to the case in the court’s discretion” is an incorrect answer. For the same reason, “need not be joined to the case as a party” is also incorrect.

Question 17

Which of the following is a factor under Rule 23 in considering whether named representatives will be permitted to sue on behalf of a class?

A It is too difficult to notify potential members of the class

B The claim arises under federal law

C The class is so numerous that joinder of all members is impracticable

D It would be expensive for individual plaintiffs to sue in separate actions

Answer 17

C

One of the factors listed under Rule 23 for determining whether named representatives can sue on behalf of a class is whether the class is so numerous that joinder of all members is impracticable. Named representatives will be permitted to sue on behalf of a class if: (i) The class is so numerous that joinder of all members is impracticable; (ii) There are questions of law or fact common to the class; (iii) The named parties’ interests are typical of the class; (iv) The named representatives will ensure the fair and adequate representation of the interests of absent members of the class; and (v) The action meets the definition of any of the following three types of class actions found in Rule 23(b): i. Separate actions by class members would create a risk of inconsistent results or, as a practical matter, would impair the interests of other absent members of the class; or ii. A defendant has acted or refused to act on grounds applicable to the class and injunctive or declaratory relief is appropriate for the class as a whole; or iii. There are questions of fact or law common to members of the class that predominate over individual issues and a class action is superior to the alternative methods of adjudication. Accordingly, that it would be expensive for individual plaintiffs to sue in separate actions and that it is too difficult to notify potential members of the class are not listed factors under Rule 23.

Question 18

Under certain circumstances, a _______ may be issued without notice to the other party.

A Preliminary injunction

B Temporary restraining order

C Summary judgment

D Judgment as a matter of law

Answer 18

B

A court may grant, in its discretion, an ex parte temporary restraining order if the moving party gives specific facts in an affidavit or in the verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition. The other requirements are that the moving party must (i) certify in writing all efforts she made to give notice of the hearing to the adverse party and the reasons why notice should not be required; and (ii) provide some security, the amount of which is determined by the court, to pay for any costs and damages incurred by the adverse party if he was wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security. Preliminary injunctions, summary judgments, and judgments as a matter of law require notice to the other party in order to be issued.

Question 19

An employee filed in state court a civil action alleging sexual harassment in the workplace. She asserted federal statutory employment discrimination claims against her employer, and she asserted a state law battery claim against the co-worker who allegedly engaged in the sexual harassment. The plaintiff employee, the defendant employer, and the defendant co-worker are all citizens of the state in which the action was filed.
May the defendants properly remove the action to federal district court?

A No, because the federal district court does not have subject matter jurisdiction over the action.

B No, because the defendants are citizens of the state in whose court the action is pending.

C Yes, the action may be properly removed to federal district court, provided the amount in controversy exceeds $75,000.

D Yes, the action may be properly removed to federal district court, regardless of the amount in controversy.

Answer 19

D

The action may be properly removed regardless of the amount in controversy. A defendant may remove an action that could have originally been brought in the federal courts. Federal question jurisdiction is available when the plaintiff, in her well-pleaded complaint, alleges a claim that arises under federal law. In the instant case, the plaintiff is bringing a federal statutory employment discrimination claim. This presents a federal question, and removal is authorized on this basis. Once one claim satisfies the requirements for original federal subject matter jurisdiction, the court has discretion to exercise supplemental jurisdiction over related claims that derive from the same common nucleus of fact and are such that a plaintiff would ordinarily be expected to try them in a single judicial proceeding. The battery claim arises out of the same transaction or occurrence as the employment discrimination claim. Thus, the court has supplemental jurisdiction over that claim, making (D) correct and (A) incorrect. (B) is incorrect because removal would be based on federal question jurisdiction, and the restriction on an in-state defendant removing a case to federal court applies only when removal is based on diversity of citizenship jurisdiction. Similarly, federal question jurisdiction, unlike diversity of citizenship jurisdiction, does not have an amount in controversy requirement, making (C) incorrect.

Question 20

A citizen of State A and a citizen of State B were in an automobile accident in State A. The State A citizen filed a negligence action against the State B citizen in a State A state court, seeking $500,000 in damages.

May the State B citizen have the case removed to federal district court?

A No, the case is not within the federal courts’ subject matter jurisdiction.

B No, because, while diversity of citizenship jurisdiction exists, the action cannot be removed from a State A state court because it arises from events that occurred in State A.

C Yes, because the action originally could have been brought in federal district court.

D Yes, subject to the federal court’s discretion to grant or deny the motion for removal.

Answer 20

C

The case may be removed to federal district court. Under 28 U.S.C. section 1441, a defendant may remove an action that could have originally been brought in the federal courts. (In other words, subject matter jurisdiction based on either a federal question being presented or on diversity of citizenship would have been present had the case been filed in federal court.) Diversity of citizenship jurisdiction is available when (i) there is complete diversity of citizenship, meaning that each plaintiff must be a citizen of a different state from every defendant; and (ii) the amount in controversy exceeds $75,000. Here, the plaintiff is from State A and the defendant is from State B. The plaintiff’s claim is for $500,000, satisfying the amount in controversy requirement. Thus, there is diversity of citizenship jurisdiction over this claim. Because there is diversity of citizenship jurisdiction, the case is removable to federal court, making (C) correct and (A) incorrect. (B) is incorrect because there is no such restriction on removal. A case may be removed to federal court even though the case arose within the state. (D) is incorrect because the federal judge does not have the discretion to decline removal.

Question 21

A consumer filed a breach of contract action against a seller in a state court in State A, seeking $100,000 in damages. The consumer was a citizen of State A. The seller was a State B corporation whose principal place of business was in State A. Five days after being served with the complaint and summons, the seller removed the action to federal district court. Seven months later, the consumer filed a motion to remand the action back to state court.
How should the federal court rule on the motion to remand the action to state court?

A Deny the motion, because it was untimely.

B Deny the motion, because the federal court has subject matter jurisdiction over the action based on its diversity of citizenship jurisdiction.

C Grant the motion, because the federal court lacks subject matter jurisdiction.

D The federal court has discretion to either hear the action or remand it to state court.

Answer 21

C

The court should grant the motion. A defendant may remove an action that could have originally been brought in the federal courts. Diversity jurisdiction requires complete diversity–meaning that each plaintiff must be a citizen of a different state from every defendant–and the amount in controversy must exceed $75,000. The citizenship of an individual is his permanent home, and a corporation is a citizen of every state in which it was incorporated and the one state in which it has its principal place of business. Here, the consumer was citizen of State A, and the corporation was a citizen of State B (its state of incorporation) and of State A (in which it had its principal place of business). Thus, the case was not removable because complete diversity does not exist, and, as a result, there is no subject matter jurisdiction based on diversity of citizenship. Nonetheless, the case here was removed to federal court. If the plaintiff bases the motion to remand on a defect other than subject matter jurisdiction (i.e., a defect in the removal procedure), the motion to remand must be brought within 30 days of removal. There is no such time limit for a lack of subject matter jurisdiction. The court must remand whenever it is shown that there is no subject matter jurisdiction. Here, since the motion to remand is based on a lack of subject matter jurisdiction, as explained above, the fact that seven months has passed since removal is largely irrelevant. As a result, (C) is correct and (A) is incorrect. (B) is incorrect because diversity of citizenship jurisdiction does not exist, as explained above. (D) is incorrect because the court is without discretion to keep the case once it is shown that there is no subject matter jurisdiction. (This is to be distinguished from the fact that the federal court has discretion to remand a case to state court once all federal claims have been resolved over which there is no diversity jurisdiction (and over which the court had supplemental jurisdiction). Here, there was no claim within the court’s subject matter jurisdiction.)

Question 22

A delivery truck driver, a citizen of State A, and a convertible driver, a citizen of State B, were involved in a crash in State A that was the delivery truck driver’s fault. The convertible was damaged, and the driver also claimed that he suffered from whiplash. The convertible driver sued the truck driver in a federal court in State A, claiming $100,000 for damage to his convertible and $100,000 for whiplash. However, the jury awarded the convertible driver only $50,000 for damage to his convertible and $25,000 for his whiplash.
If the truck driver challenges the verdict because the court lacked subject matter jurisdiction, will the verdict stand?

A Yes, because the amount of the award was still $75,000.

B Yes, because jurisdiction is not defeated by the lesser award.

C No, because the amount of the award was only $75,000.

D No, because the court was required to dismiss the action the moment it lacked jurisdiction.

Answer 22

B

The verdict will stand. Even though the jury did not award the plaintiff more than $75,000, diversity jurisdiction is not retroactively defeated by that fact. (A), (C), and (D) are incorrect for this reason. (A) is also incorrect in that the answer implies that the jurisdictional amount for diversity is $75,000. It is not. Rather, the amount must be more than $75,000; i.e., at least $75,000.01.

Question 23

A restaurant owner in State A bought two large freezers from a manufacturer of commercial refrigeration equipment with its principal place of business in State B. Within one week and after being fully stocked with meat, one of the freezers broke down. The restaurant owner filed a state-based products liability action against the manufacturer in federal court in State A, and included a demand for a jury trial. Under the law in State A, jury verdicts do not need to be unanimous, but the Federal Rules of Civil Procedure require jury verdicts to be unanimous.
At trial, the restaurant owner makes a motion asking the court to apply the State A law.
How should the court rule on the motion?

A Grant the motion, because applying the federal rule may change the outcome of the case.

B Grant the motion, because, when a federal court has diversity jurisdiction, it is required to apply the substantive law of the state in which it is sitting.

C Deny the motion, because the Federal Rules of Civil Procedure apply in federal court as long as they are consistent with the Rules Enabling Act and not unconstitutional.

D Deny the motion, because the Supreme Court’s balancing factors indicate that federal law should apply.

Answer 23

The court should deny the motion. Under the Erie doctrine, when a state law-based claim is brought in federal court based on diversity of citizenship, the federal court generally applies the substantive law of the state in which it is sitting. However, where a specific federal statute or the Federal Rules of Civil Procedure are on point, the federal court must apply federal procedural law as long as the federal rule is valid. Under the Rules Enabling Act, a Federal Rule is valid if it deals with “practice or procedure” and does not “abridge, enlarge, or modify” a substantive right. Here, there is a specific federal procedural rule that is on point [Fed. R. Civ. P. 48], which requires jury verdicts to be unanimous, unless the parties agree otherwise. Since there is no evidence of agreement, the federal procedural rule will apply, and the motion should be denied. (A) is wrong because it states the wrong conclusion, and it incorrectly cites the “outcome determination” test. This is the test that may be applied when there is no federal procedure law on point, and it is unclear whether the state matter is substantive or procedural. As stated above, there is a federal procedural rule on point. Therefore, this test does not apply. Similarly, (D) is wrong because it is referring to the balance of interests test, which is another test that may be applied when there is no federal procedural law on point, and it is unclear whether the state matter is substantive or procedural. This test is not applicable here, however, because there is a federal procedural rule on point. (B) is wrong because, although it is a true statement of law that a federal court with diversity jurisdiction is required to apply the substantive law of the state in which it is sitting, the requirements for a jury verdict is a procedural rule, not a substantive rule. Therefore, as set forth above, the federal procedural rule governs.

Question 24

A restaurant franchise properly sued the franchise owner of one of its restaurants in federal court for breach of contract for refusing to display materials for the new marketing campaign it launched. The court scheduled a pretrial conference for the purpose of “pressuring” the parties to settle the case. Both parties were given proper notice of the scheduled hearing, but only the owner of the restaurant and her attorney appeared at the conference. The judge immediately issued an order requiring the restaurant franchise to pay the restaurant owner travel expenses and attorneys’ fees for failing to attend.
Is this a valid order of the court?

A No, because the judge does not have the power to issue such an order.

B No, because the court does not have the discretion to order a pretrial conference solely to pressure parties into settling a case.

C Yes, because the Federal Rules of Civil Procedure give the federal court discretion to order a pretrial conference for virtually any matter that is relevant, including settlement.

D Yes, because a pretrial order binds all parties to the case for the remainder of the case.

Answer 24

C

This order by the court is valid. The Federal Rules give the court the power to call one or more pretrial conferences for a variety of reasons as necessary to expedite trial and foster settlement. Moreover, this conference is to be attended by at least one of the lawyers for each side who will actually be conducting the trial, and by any unrepresented parties. A party or counsel may be sanctioned for failure to attend a conference or obey an order entered pursuant to the conference. Additionally, the court must require the disobedient party or counsel to pay expenses incurred (including attorneys’ fees) by other parties unless the court finds that circumstances make such an award unjust. Here, the judge does have the power to not only order a pretrial conference to expedite the trial and encourage settlement, but also to sanction the restaurant franchise to pay the restaurant owner’s travel expenses and attorneys’ fees for failing to appear. (A) is wrong because it is a misstatement of the law. The judge does have the power under the rules to order the party who fails to appear to pay the opposing side’s attorneys’ fees. (B) is wrong because it also misstates the law. The Federal Rules permit courts to call pretrial conferences to expedite trial and foster settlement. (D) is wrong because, although it is a correct statement of the law (that pretrial orders bind all parties to the case for the remainder of the case), it does not directly answer the call of the question. The question asks if the order is valid. It does not ask if it is binding on the parties.

Question 25

A State A book dealer sold a number of rare comic books to a State B collector for $90,000. The collector paid $10,000 upon delivery and agreed to pay the balance in eight monthly installments of $10,000 each. Two weeks after the sale, the dealer and the collector were involved in an automobile accident that was unrelated to the comic book transaction. The dealer filed a negligence action against the collector in federal district court to recover $100,000 for injuries incurred in the automobile accident.
If the collector wishes to assert a $90,000 fraud claim against the dealer on the grounds that the comic books were counterfeit, may the collector assert this claim in the pending negligence action?

A The collector must assert the fraud claim against the dealer in a separate action because the two claims do not arise from the same transaction or occurrence.

B The collector will be foreclosed from asserting the fraud claim unless he asserts it as a counterclaim in the pending negligence action.

C The collector may assert the fraud claim either as a counterclaim or in a separate lawsuit.

D The collector may file a motion seeking leave to assert the fraud claim as a counterclaim, and the court has discretion to allow or disallow the joinder.

Answer 25

C

The collector may assert the fraud claim either as a counterclaim or in a separate lawsuit. The collector’s fraud claim is a permissive counterclaim since it does not arise from the same transaction or occurrence as the dealer’s claims. Therefore, the collector may assert it as a counterclaim or bring a separate lawsuit. (A) is incorrect because a defendant may assert a permissive counterclaim, assuming there is subject matter jurisdiction, even though there is no connection between it and the plaintiff’s claim. (B) is incorrect because only compulsory counterclaims must be asserted. (D) is incorrect because a defendant does not have to file a motion and seek the court’s permission to assert a counterclaim.

Question 26

A condo owner, a citizen of State A, hired an electrician, a citizen of State A, and a gas worker, a citizen of State B, to fix the wiring in his condo and install a new gas stove. Unfortunately, the condo burned down while they were working on it. The condo owner sued the gas worker for negligence, seeking $100,000. The gas worker files a motion to dismiss the case for failure to join the electrician, alleging that he contributed to the fire.
How should the court rule?
response - correct
ADeny the motion and order that the electrician be joined as a permissive co-defendant.
BDeny the motion and order that the electrician be joined as an indispensable party.
Correct
CDeny the motion, because the electrician is not a necessary party.
DGrant the motion, because the electrician is a necessary party but his joinder would destroy complete diversity.

Answer 26

C

The court should deny the motion. The most typical way in which compulsory joinder is raised is by a Rule 12(b) motion to dismiss for failure to join an indispensable party. To determine if the party is truly indispensable, the first step is to determine whether the absentee should be joined. One reason why an absent party should be joined is when complete relief cannot otherwise be accorded among parties. However, under the tort law in a number of states, any single joint tortfeasor may be liable for the entire wrong, making complete relief for the plaintiff possible. Another reason to join an absent party is if he has an interest in the subject matter of the suit such that, without his presence, his ability to protect his interest will be impaired or the existing parties will be subject to a substantial risk of incurring multiple or inconsistent obligations. Here, the electrician has no interest to protect. Even if the condo owner were to sue the electrician later, the electrician would not be precluded from raising any defenses that the gas worker raised, because the electrician was not a party to the initial case and therefore issue preclusion would not apply to him. Accordingly, the electrician is not a necessary party. (D) is therefore incorrect. It is true that, if the electrician were joined, there would be no diversity, and (D) states the outcome for a case if the electrician were truly an indispensable party; however, as explained above, that is not the case here. (B) is also incorrect in suggesting that if someone fits within the “indispensable party” category, subject matter jurisdiction is proper. The supplemental jurisdiction statute specifically prohibits the use of supplemental jurisdiction by plaintiffs against persons made parties under Rule 19. It is also contrary to Rule 19(b), which provides for an analysis of what a court should do if there is a Rule 19(a) party who cannot be joined because of jurisdiction. (A) is incorrect. Rule 20 permits joinder of additional co-plaintiffs or co-defendants when a claim relates to the same occurrence or transaction and there is a question of fact or law in common. However, permissive joinder merely permits the plaintiff to make this choice and does not permit the court to impose a party on the plaintiff.

Question 27

A plaintiff sued an auto manufacturer for negligence after a car accident involving the plaintiff’s car that was made by the auto manufacturer. Sixty days after service of the complaint and 40 days after service of the manufacturer’s answer that contained no counterclaim, the plaintiff filed a motion seeking to file an amended complaint adding a claim for strict products liability against the auto manufacturer stemming from the same incident. The statute of limitations for strict products liability claims expired one week before the motion was filed.
How should the court rule on the plaintiff’s motion?

A Grant the motion, because every party is entitled to amend once as a matter of course.

B Grant the motion, because the amended complaint relates back.

C Deny the motion, because, while the motion is timely, the proposed claim is futile because the statute of limitations has run.

D Deny the motion, because it is not timely.

Answer 27

B

The court should grant the motion. Federal Rule of Civil Procedure 15 states that leave of court (to grant motions to amend) is to be “freely given when justice so requires.” The rule does not provide any clear date when amendments are no longer permissible, although later amendments obviously would be less fair and less likely to be considered in the interest of justice. Additionally, for statute of limitations purposes, proposed claims may be considered to “relate back” to the date of the original pleading in which the claim was made under Rule 15(c). That is critical here because, although the statute of limitations for the proposed products liability claim had expired at the time the motion was made, the amended complaint asserting a products liability claim relates back to the original filing because that claim stems from the same facts alleged in the original complaint, and the statute of limitations had not expired at the time of the original filing. (A) is incorrect because a plaintiff may amend the complaint once as a matter of course (i.e., without court intervention) not later than 21 days after service of the auto manufacturer’s answer. Here, 40 days have passed since the auto manufacturer filed its answer, so amending as a matter of course is not permitted. (C) is incorrect. Although the proposed claim would be futile if filed in an original complaint, here, because the claim can relate back to a complaint filed at a time when the proposed claim was still viable, the proposed claim is not considered futile. (D) is incorrect by suggesting that the motion is not timely. Although plaintiff can no longer amend as a matter of course, there is no absolute date pursuant to which a motion to amend is untimely.

Question 28

An attorney in one state represented a plaintiff for personal injuries sustained due to the negligence of the defendant, which occurred on January 20. The statute of limitations for the plaintiff’s cause of action is governed by the law of a different state. That statute of limitations is only three months. In other states, the statute of limitations for similar causes of action ranges from two years to five years; in the attorney’s home state it is three years. The plaintiff first went to see the attorney on June 15, after the statute of limitations had expired. The attorney, based on his experience in other states, believed that the case was well within the statute of limitations. He drafted a complaint, signed it, and filed it in federal court on June 20. The case was immediately dismissed based on the fact that the statute of limitations had expired.
May the attorney be sanctioned?

A No, because he did not know that the plaintiff’s case was not warranted by existing law.

B No, because he could have argued that the statute of limitations should be reversed.

C Yes, because the attorney’s signature makes him strictly liable for any defects in the complaint.

D Yes, because he should have known that the plaintiff’s case was not warranted by existing law.

Answer 28

D

The attorney may be sanctioned. In signing a pleading, the attorney represents, among other things, that he has made a reasonable inquiry into the factual and legal grounds for the pleadings. Here, had the attorney performed any sort of research into the matter, he would have discovered the unusually short statute of limitations period and that, as a result, the plaintiff did not have a valid cause of action. Thus, the attorney violated Federal Rule 11, and he may be sanctioned. (A) is incorrect because the standard is an objective, not subjective, standard. (B) is incorrect because statutes of limitations are made by the legislature, and the probability of a judicial overturn is nil. Thus, a good faith argument that the statute of limitations should be overturned is impossible to make. (C) is incorrect because a signature alone is insufficient for sanctions. There must be some objective misconduct on the part of the attorney or client.

Question 29

A college student from State A hit another car driven by a resident from State B when the college student was traveling through State B. The State B driver brought an action in State B state court against the State A college student, who has limited financial resources. The college student filed a motion to dismiss, claiming the State B court lacks personal jurisdiction.
What is the best argument to support the college student’s motion to dismiss?

A The college student did not take actions to purposely avail herself of State B simply by driving through State B.

B It is unfair, inconvenient, and highly unreasonable to require a college student with limited financial resources to defend the action in State B for financial reasons.

C The interstate judicial system’s interest in obtaining the most efficient resolution of the controversy is violated by requiring the college student to defend the action in the forum state.

D State B is not the proper venue to file this claim.

Answer 29

B

The best argument the college student has to defend a motion to dismiss for lack of personal jurisdiction is to argue that the fairness prong of the constitutional minimum contacts test is not met. In addition to sufficient minimum contacts with the forum state, personal jurisdiction must not offend “traditional notions of fair play and substantial justice.” The Supreme Court in International Shoe listed several factors relevant to assess the fairness factor, including the burden on the defendant in terms of convenience in defending the action. Here, the best argument out of the four choices listed is that it would be unfair, inconvenient, and highly unreasonable for a college student from State A with limited financial resources to defend the action in State B. Note that this still may be a losing argument, as this argument will not prevail unless the burden to the defendant is “so gravely difficult and inconvenient that a party is unfairly put at a severe disadvantage in comparison to his opponent.” However, this is still the best argument to support the motion to dismiss for lack of personal jurisdiction. (A) is wrong because, to establish the contacts prong of the minimum contacts test, the defendant’s contact with the forum state must result in purposeful availment of the state, meaning the defendant took actions that were purposely directed toward the forum state and from which the defendant derived the benefits and protections of the state’s laws, such as using the roads in the state. Here, driving through State B was sufficient because it was a purposeful activity and she was protected by State B’s police and traffic laws while doing so. (C) is wrong because, although considering the interest in obtaining the most efficient resolution of the controversy is one of the factors the Supreme Court listed in assessing the fairness prong, it is inapplicable to the facts. Here, litigation in either State B or State A would likely be equally efficient. (D) is wrong because State B clearly is a proper venue, as it is the judicial district where the claim arose. Moreover, the question stated that the motion to dismiss was based on lack of personal jurisdiction, not lack of venue.

Question 30

When he turned 21, a young man who lived in State A decided to move to a city in State B. He loaded all his possessions in his truck and trailer and set out for State B. While en route, he was involved in a serious accident in State C with a woman driving an SUV, injuring both parties. Because of his injuries, the man has remained in State C for several months. However, he still intends to relocate to the city in State B as soon as he has recuperated and is able to travel. The woman, a citizen and resident of State D, is preparing to file a negligence action in federal district court against the man for the injuries she suffered in the State C accident.If the woman files the action before the man proceeds to State B, in what federal district or districts is venue proper?

A The District of State C only.

B The District of State C and the District of State A.

C The District of State C and the District of State B.

D The District of State C, the District of State A, and the District of State B.

Answer 30

B

Venue is proper in the District of State C and the District of State A. Federal venue in civil actions is proper in (i) the district where any defendant resides, if all defendants are residents of the state in which the district is located; and (ii) the district in which a substantial part of the events or omissions giving rise to the claim occurred. If there is no district anywhere in the United States that satisfies (i) or (ii), the action may be brought in a judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action. Here, the District of State C is a proper venue because a substantial part of the events giving rise to the claim occurred there. Additionally, at the time of the accident, the man’s domicile was in State A. It remains his domicile until he acquires a new one by being physically present in a new place while intending to make that new place his permanent home. The man did not acquire a new domicile in State B because he has yet to be physically present there (although he does intend to make it his permanent home). As a result, (B) is the correct answer. (A) is not correct because the answer does not discuss the possibility of venue being based on the man’s domicile. State C was not his domicile, because he does not intend to live indefinitely in State C. As stated above, State A remains his domicile. (C) and (D) are not correct because, as discussed above, the man has not made either place his domicile.

Question 31

A patient properly filed a medical malpractice claim against a doctor in federal district court. The complaint simply asserted negligence as the grounds for relief without any facts supporting the claim. The doctor filed a pretrial motion for a more definite statement, which the court denied. Immediately thereafter, and without submitting an answer, the doctor filed a motion to dismiss, asserting that the court lacked personal jurisdiction.
Will the court grant this motion to dismiss?

A Yes, because a defendant may file a motion to dismiss based on lack of personal jurisdiction at the time he files a motion or at the time he files his answer, whichever occurs later.

B Yes, because the lack of personal jurisdiction defense can be raised at any time, even for the first time on appeal.

C No, because a defendant must file a motion to dismiss based on lack of personal jurisdiction at the time he files a motion or at the time he files his answer, whichever occurs first.

D No, because a lack of personal jurisdiction defense can only be raised in an answer or it is waived, and the defendant did not submit an answer.

Answer 31

C

A defendant must file a motion to dismiss based on lack of personal jurisdiction at the time he files a motion or at the time he files his answer, whichever occurs first. If he does not, the defendant waives the defense. Here, the defendant first filed a pretrial motion for a more definite statement, which the court denied. Since he did not assert the lack of personal jurisdiction in this first motion, he waived the defense in the subsequent motion. (A), is wrong because it misstates the rule. This affirmative defense must be asserted in either a motion or an answer, whichever is first, not later, or it is waived. (B) is wrong because it also misstates the rule for personal jurisdiction. This would be the correct answer if the motion to dismiss were based on lack of subject matter jurisdiction, but this motion is based on lack of personal jurisdiction. (D) is wrong because it also misstates the law, as set forth above.